Full opinion text
Opinion MORENO, J. Defendant Christopher Adam Geier was convicted by a jury of the forcible rape of Erin Tynan (Pen. Code, § 261, subd. (a)(2)), the murder of Erin Tynan (Pen. Code, § 187, subd. (a)), as to which a felony-murder special circumstance was found to be true (Pen. Code, § 190.2, subd. (a)(17)), two counts of conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187), and the murder of Curtis James Dean (Pen. Code, § 187, subd. (a)), as to which financial gain, lying-in-wait and multiple-murder special circumstances were found to be true (Pen. Code, § 190.2, subd. (a)(1), (3), (15)). Defendant was also convicted of conspiracy to murder Gail Lebouef (Pen. Code, §§ 182, subd. (a)(1), 187). The jury also found true special allegations that defendant personally used a knife and a handgun in the commission of the offenses. (Pen. Code, §§ 12022, subd. (b), 1203.06, subd. (a)(1).) The jury returned death verdicts for the murders of Erin Tynan and Curtis James Dean. The trial court declined to modify the verdict (Pen. Code, § 190.4, subd. (e)), and sentenced defendant to death on the murder counts. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment. I. FACTS A. Prosecution Guilt Phase Evidence 1. The Rape and Murder of Erin Tynan In 1990, Erin Tynan was a military police officer stationed at Fort Irwin in Barstow. In the spring and summer of 1990, Tynan was romantically involved with William Jones, Jr., who was also in the Army. When Jones and Tynan had sexual relations, she used a sponge contraceptive. According to Jones, Tynan, who was Caucasian, had a preference for muscular African-American men like Jones. Jones also described Tynan as a person who cared about her appearance. As part of her grooming routine she kept her fingernails in good shape and would regularly change their color. Jones was acquainted with defendant, who is Caucasian, and who was also in the Army and stationed at Fort Irwin. At some point, Jones bought a Jennings .22-caliber semiautomatic pistol from defendant. The pistol was in pretty poor condition. There was something wrong with the firing pin that created a problem with the ejection of the cartridge after the gun was fired. Jones left the Army in late July, 1990, but remained in Barstow until the beginning of August. Before he left Barstow, Jones attended a party with Tynan at the apartment complex in which defendant lived. Defendant was present at the party. Defendant had been acquainted with Tynan before the party and had once told Jones that if he had seen Tynan first “he would have been with her.” Jones understood this to mean that defendant wanted to have sex with Tynan. When Jones left California in August 1990, he left with Tynan the pistol he had bought from defendant. When he spoke to her in October, she told him she wanted to get rid of the gun and had a buyer. He told her to sell it. Robert Bishop, an Army sergeant, who had a dating relationship with Tynan in the fall of 1990, saw a .22- or .25-caliber semiautomatic pistol at her apartment. She kept the gun in her closet and brought it down to show him. Anthony Brunson, another soldier stationed at Fort Irwin, contacted Tynan in late September or mid-October about buying the pistol that Jones had left with her. He had approximately four conversations with her about the gun and was trying to raise the money to purchase it up until the time of her death in November. Eugene Knox, a soldier stationed at Fort Irwin, began dating Tynan in November 1990. He spent the night of November 13 with Tynan and they engaged in sexual intercourse. The next morning they both went to work at Fort Irwin. Knox last saw her sometime after 12:30 p.m. that afternoon. At 5:42 p.m., Robert Bishop called Tynan from Fort Irwin and asked her if he could come and see her. She told him no because she was tired and wanted to go to bed. About 8:00 p.m., Joni Lee Jacobsen was visiting her friend, Jesse Hisquierdo, who lived in the apartment adjacent to Erin Tynan’s apartment. She and Hisquierdo were watching television when, about 8:30 p.m., she heard a woman scream in the next apartment. A few seconds later she heard a thump “like someone running into the wall” or “bumping into the wall.” She assumed the people next door were “partying” and did not investigate. The next day, November 15, Tynan failed to report for duty. About 3:00 p.m., a Barstow police officer, Alan Schieb, was dispatched to her apartment to check up on her. When he arrived he saw that the lights were on inside the apartment and the television was playing rather loudly. The door was locked. He knocked at the door, but received no response. Schieb left and returned two hours later with Sergeant Beringer, a military police officer. Shortly after 5:00 p.m., the apartment manager let them into Tynan’s apartment. Schieb observed that the dead bolt was not locked, only the doorknob lock. The living room did not appear to be disturbed. Schieb and Beringer went into the bedroom and turned on the light. They found Tynan’s body lying on the bed. She was clad in a turquoise-colored housecoat that was open, exposing her breasts. A sheet was pulled up to her navel. Schieb called the police dispatcher and asked for the paramedics and detectives to be alerted. Detective Leo Griego arrived at scene in response to Schieb’s call. Griego determined there had not been a forcible entry into the apartment. On the dining room table he observed bottles of nail polish and polish remover spread out on a cloth mat. He also found a wallet with Tynan’s identification, credit cards and some cash. There were no indications that a struggle had taken place in the apartment. In the kitchen, Griego found two pots on the stove, one containing noodles and the other broccoli. The food was reasonably fresh. In the bathroom he found two empty containers for sponge contraceptives in the wastebasket, but no contraceptives. Griego went into the bedroom and examined Tynan’s body. He observed that the fingernail on her right-hand ring finger was broken off and that strands of hair were embedded in the other nails of her right hand. The fingernails of her left hand were also damaged and hair was found in the fingertip area of her left hand. A pair of panties was found rolled up on the carpet. Tynan was not wearing anything other than the housecoat. Detective Griego observed that Tynan had suffered various injuries including discoloration to her left eyebrow, abrasions and bruises around her knees and blood smears around her left ear and a puncture wound in the same area. Griego initially believed the puncture was a gunshot wound but later concluded it was a stab wound. There was also blood on her foot. There was moist blood on the carpet and on the bedsheet. Griego found a .22-caliber cartridge on the top shelf of the bedroom closet, but no gun. Tynan’s body was examined by Pathologist Edward Yeager. He testified that the stab wound behind Tynan’s ear had partly severed her carotid artery. He also found injuries to Tynan’s head, neck, upper torso and legs, and observed an “impact abrasion” on her forehead. Yeager observed an abrasion to her anus but found no evidence of vaginal tearing or abrasion. The absence of such injuries, however, did not in his opinion preclude nonconsensual sexual activity. According to Yeager, the cause of death was the stab wound and manual strangulation. Police criminalists removed various items from the bedroom and from Tynan’s body for testing. The strands of hair embedded in her fingernails were collected for microscopic analysis by forensic serologist David Vreland. Vreland concluded that seven of the hairs found in Tynan’s hand could have come from defendant. David Gregonis, a sheriffs criminalist, collected forensic samples from Tynan’s body, including pubic hairs and vaginal and rectal swabs. Seminal fluid was detected on the vaginal swab and it was submitted for DNA testing. That testing revealed that the DNA matched defendant’s DNA. DNA testing on a piece of Tynan’s bedsheet that contained semen revealed that the DNA banding pattern was consistent with Eugene Knox’s DNA. Other seminal fluid found on the comforter did not match defendant’s DNA. Rhonda Contreras lived with Sue Kennedy, defendant’s girlfriend at the time of the Tynan murder. Contreras, a drug addict, testified that shortly after Tynan’s murder she heard defendant say “the bitch had gotten what she deserved.” Defendant said that Tynan was “kind of sleazy” and that, had she been his girlfriend, he would not have put up with her behavior. He told Contreras that Tynan had been brutally beaten and stabbed in the back of the neck or head, information that had not yet appeared in the press. Geier was cleaning a semiautomatic pistol while he made these comments and referred to the gun as his “baby.” James Winstein, a fellow Fort Irwin soldier who was involved in the conspiracy to murder Gail Lebouef (see post), testified under a grant of immunity that, in December 1990, defendant told him he had murdered Tynan. 2. The Conspiracy to Murder Gail Lebouef Gail Lebouef was the ex-wife of Jeffrey Hunter, defendant’s sergeant at Fort Irwin; the two divorced in September 1989. She and Hunter remained in touch after the divorce. In December 1990, Lebouef was living in Marrero, a suburb of New Orleans, with her two daughters from her marriage to Hunter. During the marriage, Hunter had purchased fife insurance policies on Lebouef and their children. He continued to pay the premiums on the policies after the divorce. He was the beneficiary of the policy for Lebouef. Lebouef was aware that Hunter was experiencing financial problems and at least one of his creditors had contacted her about Hunter’s unpaid credit card bill. Hunter had also told her he was concerned about whether he could make child support payments scheduled to begin in 1991 or 1992, after he had paid off her car. Lebouef had been living with her parents but, due to disagreements with them, she accepted the invitation of Hunter’s sister, Robin Castle, to stay at Castle’s home over the holidays. She and one of her daughters moved into Castle’s house sometime in mid-December. Hunter was aware that his ex-wife was staying with his sister. He also knew that she worked at a toy store in a shopping mall. James Winstein was a tank gunner in the same battalion as defendant. In late November or early December, defendant offered to pay Winstein $1,000 if Winstein would drive him to Alabama to visit his parents. After some further conversations, defendant confided to Winstein that his real purpose was to go to New Orleans to commit a murder for someone for insurance money. He wanted Winstein to drive him to New Orleans. He told Winstein he would pay him from defendant’s share of the insurance proceeds. After Winstein agreed, defendant provided more information about the murder, including showing Winstein a photograph of the victim, Gail Lebouef. He told Winstein he had obtained the photograph from Hunter. Lebouef s photograph was in a suitcase that also contained a double-edged black knife, a nine-millimeter pistol, a .22-caliber semiautomatic pistol, rope and a road atlas in which he had highlighted a route to New Orleans. Defendant told Winstein that defendant planned to break into Lebouef s residence in the middle of the night and kill her, making it look like a burglary. Winstein’s job would be to wait in the car and drive defendant away after he committed the murder. The two men left California on December 18, 1990, and arrived in New Orleans on December 20. Defendant had in his possession a black gym bag containing the knife, firearms, rope, a map and a change of clothes. Once they arrived in New Orleans, they went back and forth between Lebouef’s parent’s house and the mall where she worked, looking for her car, eventually locating it at the mall. Defendant wanted to kill Lebouef in the parking lot of the mall, but Winstein objected that this was not the agreed-upon plan. Eventually, they decided not to kill her at the mall. That evening, they returned to Lebouef s parent’s house looking for her car. When they did not find it, defendant telephoned Hunter, who gave him directions to Robin Castle’s home. They drove by the house but, from the number of cars and people on the street, they thought there might be a party, so they decided to return later. Gail Lebouef and her oldest daughter arrived at the Castle residence about 10:00 p.m. They occupied the back bedroom of the house. Lebouef went to bed around midnight. About 3:00 a.m., defendant and Winstein returned to Castle’s residence and parked. Defendant, dressed in dark clothing, exited the truck with the .22-caliber pistol, a knife and rope. Lebouef was awakened about 3:30 a.m. when the bedroom light was turned on. A gun was pointed at her face by a man she saw in silhouette. He fired the gun, shooting her in the face. Although she survived, she lost four teeth and suffered damage to her jawbone and her face. Lebouef s purse, containing approximately $400 in cash, was taken from the residence. Winstein had fallen asleep in his car. At some point, he heard defendant’s footsteps coming quickly toward the car and then saw him running. He jumped into the car and said, “Let’s go, let’s go, let’s go.” They sped off. Defendant had a black purse in his possession from which he gave Winstein $30 or $40. As they drove north, they crossed a bridge. Defendant tossed the purse, his clothes and the gun over the side of the bridge. Defendant described to Winstein how he had entered the house and shot Lebouef. He said that the gun had jammed on him after he had fired the first round. He told Winstein he had killed Lebouef. After they returned to California, however, defendant told Winstein that she had not died and there would be no insurance payoff. Subsequently, Lebouef spontaneously identified defendant as the shooter from a photograph of him in a newspaper article about the Curtis James Dean murder (post) sent to her at her request by Detective Griego She also identified him as her assailant at the preliminary hearing. A .22-caliber cartridge case and a fragment of a .22-caliber projectile bullet were recovered from the bedroom where Lebouef was shot. William Blondet, the firearms examiner, testified that there was a “good likelihood” the bullet had been fired from a Jennings .22-caliber handgun. He also opined that the gun was a poor quality weapon and could have jammed if there was difficulty in chambering a round after the weapon had been fired once and the casing ejected. 3. The Conspiracy to Murder, and the Murder of, Curtis James Dean Curtis James Dean lived with his wife, Jennifer, and their two small children in Victorville. Sometime in late 1990, Jennifer Dean told a coworker that she and her husband were having marital problems. Another coworker heard Jennifer Dean say more than once that she hated her husband and wanted him dead. Around the same time, Jennifer Dean began having an affair with Jeffrey Hunter. On January 11, 1991, defendant approached James Winstein and told him that a female friend of Hunter’s who lived in Victorville wanted her husband dead. Defendant told Winstein that if he participated in killing the man, they would receive insurance money from the policy on the man’s life. Winstein was to provide the transportation. The killing was supposed to take place within the month. Although defendant asked him to participate several times, Winstein turned him down. On the night of February 7, 1991, Jennifer Dean went to her job at a Taco Bell but, according to a coworker, spent most of her shift talking on the telephone. Another coworker testified that she was acting as if “something was wrong.” She left the Taco Bell around 2:00 a.m. Around 2:30 a.m., Jennifer Dean’s neighbor, Deborah Benson, received a call from Dean. Dean told Deborah Benson that she had just arrived home from work and could not find her husband in the house. She said she thought her husband might be sick because she “saw something on the wall.” Dean also said some things in her bedroom were in disarray and that the house may have been burglarized. Deborah Benson woke her husband, Scott, told him about the call, and asked him to go check on Dean. Scott Benson drove the short distance to the Deans’ residence and met Jennifer Dean at her front door. Dean spoke in a very “matter of fact” voice and did not appear to be agitated or afraid. She told Benson that her house had been burglarized and was in disarray. When Benson entered the house, however, it did not appear to be in disarray or to have been burglarized. Benson walked through the house. The Deans’ daughters were asleep in the master bedroom. As Benson moved down the hallway accompanied by Dean, he saw blood on the wall and in the guest bathroom, near the light switch. He entered the children’s bedroom and found the body of Curtis James Dean on the floor between the two twin beds in what Benson described as a “fetal position.” There were “vast amounts” of blood on the bed, floor and wall. He closed the door, went to the kitchen and called 911. Jennifer Dean was present as he told the 911 operator about what he had found. She did not react or speak. Because he did not know whether Curtis James Dean was dead or alive, Benson went back into the bedroom, knelt by the body and tried to find a pulse, but was unable to do so. He observed numerous stab wounds to the body. He returned to the kitchen, got back on the line with the 911 operator, and told her that “it appeared that we had a death.” Again, Jennifer Dean did not react. Later, after the police arrived, Scott Benson took the Deans’ two small children to his house. When they arrived at his house, Sabrina, the older child said something about “the two mean men that killed her daddy,” or “the two mean men that hit her daddy.” At a later point, Benson, Jennifer Dean, and the children were driven to the sheriff’s station in a police car. While they were in the patrol car, Sabrina repeated her comment “about the two mean men that hurt her daddy.” The transporting officer, Deputy Gryp, also heard Sabrina tell her mother that “she saw daddy bent over in a pool of blood in the bedroom.” While they were at the station, Benson noticed blood smears on Sabrina’s nightgown and her leg. Gryp also saw the blood spatters and heard Sabrina complain about a bump on her head. The police investigation revealed no signs of forced entry into the Dean residence or signs that the residence had been ransacked. A great deal of blood was found inside and outside the Dean residence. Two drops of blood found on the cement in front of the house were later determined to be consistent with defendant’s blood. Blood found on a green hand towel left on the floor outside the children’s bedroom was also consistent with defendant’s blood, as was blood found on the bathroom floor, bedroom doorjamb and on the hallway carpet. Much of the rest of the blood found in the house, including the blood found on Sabrina’s nightgown was consistent with Curtis James Dean’s blood. The blood spatters on Sabrina’s clothing indicated she was less than five feet from her father when he was stabbed. Curtis James Dean suffered 38 knife wounds, including a series of wounds that appeared to have been inflicted after his death. Police later recovered items belonging to Jennifer Dean from the apartment of friends where she often stayed. Among those items was a paper place mat from Taco Bell with defendant’s name and a telephone number written on it. Police also obtained Dean’s bank records. They showed a $500 cash advance on January 17, 1991. Defendant’s girlfriend, Sue Kennedy, testified that a woman named Jennifer called defendant at the apartment she shared with defendant. She testified further that sometime in February 1991 she noticed a cut on defendant’s forehead that he said was the result of a garage door shutting on top of his head. After defendant was arrested, Kennedy had a phone conversation with defendant in which he told her he had gone to the Dean residence with Mark Redden, a friend of his, to “beat up” Dean’s husband. He told Kennedy that, when Redden started attacking Curtis James Dean with a tire iron, defendant ran into the bathroom and stayed there. Kennedy asked defendant if he had killed Dean for insurance money. Defendant remained silent. On May 6, 1991, defendant gave a statement regarding the murder of Curtis James Dean to an Army investigator, Lester Powlen. The interview was taped and the tape was played for the jury. Defendant described how Hunter approached him and asked him to find someone to kill Jennifer Dean’s husband. Defendant met with Dean and told her he would arrange “the hit” for $10,000. She gave him a photograph of her husband. At a second meeting, she advanced him $500. Defendant recruited Mark Redden to help with the murder. On the night of the murder, Redden and he went to the Taco Bell where Jennifer Dean worked and obtained the key to her house. They drove to the Dean home and entered. Defendant was armed with a double-edged dagger and Redden carried the tire iron from defendant’s car. The plan was for Redden to hit Curtis James Dean with the tire iron while defendant stabbed him. But defendant told the investigator that, once inside the bedroom where the victim was sleeping, he got “cold feet,” told Redden he did not want to kill the victim, and went into the other room. Defendant claimed that Redden struck Dean with the tire iron, and, at one point, even struck defendant on the head. After Redden hit him, defendant said he went into the bathroom. He claimed that Redden took defendant’s dagger. Defendant heard Sabrina Dean “screaming” while her father was being murdered. Defendant said he cleaned the cut on his head with a green towel. He and Redden then left the house. After the murder, defendant threw his dagger, some latex gloves and pictures of Dean into a dumpster. He and Redden buried the tire iron and their clothing in the desert. Later, defendant took a homicide detective into the desert and led him to a site where two sets of clothing and a tire iron were found buried. The condition of the clothing negatively affected the ability to obtain serological results or genetic markers. Both pairs of pants, however, displayed impact stains and heavily saturated areas that appeared to be bloodstains. B. Defense Guilt Phase Evidence Sandra Kay Hoyt, who babysat for Sue Kennedy, defendant’s girlfriend, and then dated defendant herself, testified that she had observed Kennedy, Hunter, Mark Redden and James Winstein “snorting meth” in Kennedy’s apartment. Defendant was not present at that time. Detective Griego testified that, when he initially spoke to Gail Lebouef about her shooting, he showed her two photo lineups, one of which contained defendant’s photograph and a photograph of Jeffrey Hunter, among others. Lebouef picked out the photograph of her ex-husband, but was unable to identify any other photograph. Later, he sent newspaper articles to Lebouef that contained photographs of Hunter, Jennifer Dean and defendant. Griego also testified that when he first contacted James Winstein, Winstein initially said he spent the 1990 Christmas holidays with his mother in Las Vegas. Later, he admitted he had agreed to drive defendant to Louisiana for $1,000 where defendant told him he was going to do “some type of drug deal.” After Griego advised Winstein of his rights, Winstein said he did not want to go to jail and would cooperate. Winstein then told Griego that defendant had told him he had shot a woman but that she did not die. Eventually Winstein told Griego he had known all along that he and defendant were going to Louisiana to kill Hunter’s wife. Initially, Winstein said that defendant had not said anything to him about Erin Tynan’s death, but then said defendant told him Tynan was killed because she was getting too close to a drug investigation. Griego told Winstein he needed help on the gun that had been used to shoot Lebouef. He told Winstein, “give me the gun and I’ll write a letter to the D.A. saying you’re helpful.” It was only at Winstein’s immunity hearing that he talked about seeing the gun being disassembled and thrown away. Defendant also called eight-year-old Sabrina Dean. Sabrina testified that two men hurt her father. She denied having told police that her mother hurt her father with a knife and wiped the knife with a green towel. She also denied showing police the drawer where her mother kept knives or telling police that her mother had blood on her or took a shower after she came home. However, Sergeant Larry Brown of the San Bernardino Sheriff’s Department testified that Sabrina first stated that two men had done “something bad” to her father but also said her mother had hit her father in the back with a knife. According to Brown, Sabrina said that her mother took a knife from the kitchen drawer, stabbed her father in the back, rinsed the knife off in the kitchen sink, and then replaced it in the kitchen drawer. The police took her to the Dean residence. She led them to the knife drawer and pointed out the knife she said her mother had used. Brown testified that Sabrina repeated her statement about her father having been stabbed by her mother. Sabrina also again said that her father had been attacked by two men. At a final interview a few days after the murder, Sabrina said that her mother had stabbed her father after the two men had attacked him, in contrast to her earlier statements in which she said her mother had stabbed her father before the two men attacked him. C. Prosecution Penalty Phase Evidence The prosecution did not present additional evidence at the penalty phase of the trial. D. Defense Penalty Phase Evidence A number of defendant’s friends and family members came from defendant’s home state of Alabama to testify on his behalf. These witnesses testified that defendant was a follower, rather than a leader, who tried to please people and for whom acceptance was important. Two of defendant’s uncles who had served in the military testified that this trait of being a follower may have led defendant to be manipulated by Sergeant Hunter. Other witnesses testified that defendant was influenced in his behavior by Sergeant Hunter. Defendant’s Mends also testified that defendant was deeply affected by the murder of his best friend, Eric King, when defendant was 17 years old. Defendant was extremely shaken by having witnessed the murder and became reclusive, paranoid and depressed. Testimony was also introduced regarding defendant’s difficult relationship with a woman who came to live with defendant’s family after his father died, and with his first stepfather. Defendant’s friends and family members also testified that defendant had not been a violent person when he was growing up and they expressed shock at the charges of which he had been convicted. Edward Fischer, a clinical psychologist, testified extensively about defendant, providing a social history. Defendant was bom in Anniston, Alabama, and was the youngest of three brothers. As a child he was the target of his brother’s ridicule because he was thin and sickly. When defendant was five, his father suffered a stroke and, approximately two years later, died following a second stroke. Defendant’s father was the central figure in his life because his mother was busy with college and his brothers were at school. Defendant felt responsible for his father’s death. After his father’s death, a “masculine woman” named Sue came to live with the family and attempted to fill the paternal role. She was disliked by defendant and his brothers, and his oldest brother ran away while she was living with them. After Sue’s departure, defendant’s mother mamed a man named Virgil. Defendant was eight years old. Defendant’s stepfather constantly criticized him. Virgil eventually left. After Virgil left, defendant’s older brothers also left home and his mother pursued her doctorate and was involved in her teaching and her church activities, leaving defendant on his own. Defendant became involved in Dungeons and Dragons, a fantasy game, and in karate. He also befriended Eric King, who became his best friend. When defendant was 17, Eric King was shot to death, in defendant’s presence, following a confrontation with some other boys. Following the shooting, someone shot defendant’s dog, which led defendant to believe the boys who had killed King were after him as well. Dr. Fischer described defendant’s reaction to Eric King’s death—depression, guilt and paranoia—as indicative of posttraumatic stress disorder. During his teenage years, defendant used marijuana, drank beer and experimented with LSD. At some point in his late teenage years, defendant’s mother remarried and moved in with her new husband, leaving defendant alone in the family house. Defendant lived with a friend named Bobby Watson. They were joined by the woman who became defendant’s wife, Kim. After Kim’s boyfriend committed suicide, she attempted an overdose and was hospitalized. She asked defendant to get her out of the hospital and moved in with him and Watson. After defendant and Kim married, defendant joined the Army. The marriage disintegrated, and Kim became involved with another man. After they separated, defendant began to exhibit what Fischer characterized as symptoms of manic behavior that may have been the beginning of hypomania. According to Fischer, symptoms of a hypomanic period, as set forth in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders—Third Edition, include decreased need for sleep, more energy, increased self-esteem, productivity and creative thinking, extreme gregariousness, hypersexuality, excessive involvement in pleasurable activities with no concern for negative consequences, restlessness, increased talkativeness and inappropriate laughing. Fischer testified that another aspect of hypomania is a desire to please people and to look for external direction from other people rather than seeking it from within. Defendant’s mania was exacerbated by his drug use, which included the use of amyl nitrate, liquid codeine and amphetamines. He also used steroids, a drug that can make a person’s actions unpredictable and aggressive. Fischer administered a series of tests to defendant including the Wechsler Adult Intelligence Test, a Bender-Gestalt Test and the Minnesota Multiphasic Personality Inventory (MMPI). The latter test indicated defendant was psychotic with a likely diagnosis of “bipolar disorder or mania.” According to Fischer, a person with this profile is usually single, would have a hard time controlling himself, and exercises poor judgment. Defendant tested in the 98 percentile for mania and the 95 percentile for schizophrenia. Fischer explained, “When you get to this elevation . . . you are talking about somebody who is generally psychotic or prepsychotic.” Fischer concluded that defendant was a full-blown manic. According to Fischer, while people suffering from hypomania know the difference between right and wrong “they may be responding to unreal . . . data in the sense of hallucinations or delusions.” According to Fischer, the willingness of a manic to accommodate his feelings and attitudes to those of others, arising from “the relative instability of the ego” is “how people who are mentally defective are used by other people in ... a conspiracy. He makes his decisions, he is responsible for his decisions, but he is unduly influenced by others.” The defense also presented the testimony of Sergeant Jeffrey Hunter from his trial. Hunter testified that he had counseled defendant about defendant’s drug problem. He admitted to having introduced defendant to Jennifer Dean, but denied having discussed with defendant a plan to kill Curtis James Dean. He also essentially denied participation in the shooting of Gail Lebouef. He testified that, after the murder of Curtis James Dean, defendant told Hunter if defendant were picked up and questioned, Hunter and Jennifer Dean would be “taken out.” He also told Hunter that Hunter was supposed to have been “in that room” in New Orleans instead of Gail Lebouef and said, “I won’t make that mistake next time.” Hunter testified that these statements frightened him. Hunter also testified that defendant admitted to him his participation in the murder of Curtis James Dean, but Hunter questioned whether defendant had taken part in the murder. A videotape of a police interview of Jennifer Dean was also played for the jury. Dean said that she stabbed her husband to death with a kitchen knife she had taken from the knife drawer in the kitchen. She said she was naked when she killed her husband, and, after killing him, cleaned the knife and put it back in the drawer. She said she then took a shower and got dressed. She said she had killed her husband because he had hurt Sabrina. She claimed that the earlier inconsistent statements she had given to the police about who killed her husband were false. She said no one had helped her kill her husband. She explained that Sabrina’s comment about the two men who had attacked her fattier referred to the paramedics. II. ARGUMENT A. Pretrial Issues; Joinder Defendant contends that the trial court abused its discretion when it granted the prosecution’s motion to consolidate charges involving Erin Tynan (rape and murder with felony-murder special circumstances), with those involving Gail Lebouef (conspiracy to commit murder and solicitation of murder) and those involving Curtis James Dean (conspiracy to commit murder and murder with financial gain, lying-in-wait and multiple-murder special circumstances). He additionally argues that, even if the trial court did not abuse its discretion at the time it granted the motion, joinder actually resulted in gross unfairness amounting to a denial of due process. (People v. Ramirez (2006) 39 Cal.4th 398, 440 [46 Cal.Rptr.3d 677].) In relevant part, section 954 provides “if two or more accusatory pleadings are filed” charging “two or more different offenses of the same class of crimes or offenses ... the court may order them to be consolidated.” (§ 954.) “ ‘Murder and rape are assaultive crimes against the person and, as such, are “offenses of the same class of crimes” within the meaning of section 954 and were properly joinable. [Citations.]’ ” (People v. Ramirez, supra, 39 Cal.4th at p. 439, quoting People v. Maury (2003) 30 Cal.4th 342, 392 [133 Cal.Rptr.2d 561, 68 P.3d 1].) “Thus, defendant must show that a substantial danger of prejudice compelled severance. [Citation.] We ask whether the denial of severance was an abuse of discretion, given the record before the trial court. [Citation.] A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process.” (People v. Stitely (2005) 35 Cal.4th 514, 531 [26 Cal.Rptr.3d 1, 108 P.3d 182].) “ ‘Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259].) Because defendant emphasizes what he asserts is the absence of cross-admissible evidence between the Tynan charges and the Lebouef and Dean charges, it is necessary to point out that section 954.1 expressly provides that “where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.” (Italics added.) Thus, “cross-admissibility is not the sine qua non of joint trials.” (Frank v. Superior Court (1989) 48 Cal.3d 632, 641 [257 Cal.Rptr. 550, 770 P.2d 1119].) Therefore, while “prejudice is usually dispelled” if “evidence of one crime would be admissible in a separate trial of the other crime” (People v. Stitely, supra, 35 Cal.4th at pp. 531-532), “lack of cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder. [Citations.]” (Id. at p. 532; see Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1286 [24 Cal.Rptr.2d 34] [§ 954.1 “is a codification of several Supreme Court cases . . . that hold that while cross-admissibility may be considered as a factor suggesting possible prejudice, the absence of cross-admissibility does not, by itself, suffice to demonstrate prejudice”].) Setting aside for a moment the issue of cross-admissibility, none of the other factors for assessing prejudice arising from joinder support defendant’s claim that the trial court abused its discretion by granting consolidation. None of the three cases was more inflammatory than the other, as each involved comparably egregious facts. Nor was the evidence of one case significantly weaker than the evidence of the others so as to create the danger of a “spillover” effect that occurs when “weaker charges [are] joined with strong charges so that the effect of the aggregate evidence might alter the outcome of the trial.” (People v. Marshall (1997) 15 Cal.4th 1, 28 [61 Cal.Rptr.2d 84, 931 P.2d 262].) With respect to the Tynan case, defendant’s hairs were found in Tynan’s hand and his semen in her vagina. He was aware that she was in possession of the Jennings handgun, which was the only item missing from her apartment after her murder, and he was observed with a handgun after the murder. Furthermore, defendant was aware of details of the murder before they were released to the public, and he told Winstein that he had killed Tynan. Regarding the Lebouef case, defendant’s accomplice, Winstein, testified about defendant’s commission of the offenses against Lebouef, and Lebouef identified defendant as the man who tried to kill her. As to the Dean case, defendant’s own statement established that he had been hired to kill Curtis James Dean. He also admitted to having been at the scene of the Dean murder, although he tried to minimize his participation. He was also implicated in the Dean murder by blood evidence and Sabrina Dean’s testimony that two men hurt her father. Thus, the evidence against defendant was equally strong in all three cases. Finally, “[t]he capital charges were not the result of joinder of the various incidents.” (People v. Mendoza (2000) 24 Cal.4th 130, 162 [99 Cal.Rptr.2d 485, 6 P.3d 150].) On the issue of cross-admissibility, defendant essentially concedes that the evidence in the Lebouef case was cross-admissible in the Dean case because both “arguably share some common characteristics” but claims that “the Tynan offense is totally dissimilar from both of them.” As we explained in People v. Johnson (1988) 47 Cal.3d 576 [253 Cal.Rptr. 710, 764 P.2d 1087], the issue of cross-admissibility “is not cross-admissibility of the charged offenses but rather the admissibility of relevant evidence” that tends to prove a disputed fact. (Id. at p. 589; see Evid. Code, § 210.) Thus, in Johnson, we concluded that cartridges and a gun clip found at the scene of a rape were arguably taken from the scene of an earlier murder and were “circumstantial evidence that defendant was involved in both crimes.” (47 Cal.3d at p. 589.) Similarly, here, evidence that the Jennings .22-caliber handgun was taken from Tynan’s apartment and then was arguably used in the attempted murder of Gail Lebouef is circumstantial evidence that defendant was involved in both crimes. Defendant contends that his use of the handgun in the Lebouef case could have been established without admission of any evidence regarding how he obtained the gun, and that his removal of the handgun from Tynan’s apartment could have been established without the evidence of his subsequent use of the handgun in the Lebouef case. But defendant was identified as the perpetrator of the attempt to kill Lebouef and, therefore, evidence that he used the gun taken from Tynan’s apartment in the attempt on Lebouef would constitute some evidence that he was also the person who removed the gun from Tynan’s apartment and, by implication, murdered Tynan. Thus, in a separate trial of the Tynan offenses, evidence of defendant’s use of the gun in the attempt on Lebouef could be admissible on the question of identity. Similarly, in a separate trial of the Lebouef case, evidence that defendant was identified, through DNA evidence, as the person who assaulted Tynan and removed the gun from her apartment, the gun which was then used against Lebouef, could be admitted as some evidence that defendant was the person who attempted to kill Lebouef. Thus, in citing the potential cross-admissibility of the handgun evidence as one reason supporting consolidation of these cases we cannot say the trial court’s exercise of discretion was “ ‘outside the bounds of reasons.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 408 [79 Cal.Rptr.2d 408, 966 P.2d 442]; see People v. Johnson, supra, 47 Cal.3d at p. 590 [“In weighing its discretionary power to order separate trials, the trial court could consider this interplay of evidence between the two occurrences”].) We emphasize, however, that, even if cross-admissibility did not support consolidation of the cases, the absence of cross-admissibility alone would not be sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion. (People v. Stitely, supra, 35 Cal.4th at pp. 531-532.) We agree with defendant that the various theories offered by the prosecution that evidence in the Tynan case was cross-admissible in the Dean case are not persuasive. Contrary to the prosecution’s claim, there was nothing so distinctive about the use of a knife in the two cases as to support an inference that defendant was the perpetrator. Nor does the additional fact that defendant’s entry into each victim’s residence was accomplished without force to support such an inference. (People v. Bean (1988) 46 Cal.3d 919, 937 [251 Cal.Rptr. 467, 760 P.2d 996] [to be admissible as modus operand! evidence the “common marks must be distinctive rather than ordinary aspects of any such category of crime. They must be sufficiently distinctive that they bear defendant’s unique ‘signature’ ”].) Nonetheless, the lack of cross-admissible evidence as between the Tynan and Dean offenses does not establish prejudice where, as explained, the offenses were of the same class and therefore statutorily joinable under section 954.1, and none of the factors relevant to the assessment of prejudice supports defendant’s claim of prejudice. Moreover, for the reasons explained above, because the handgun evidence was cross-admissible in the Tynan and Lebouef cases and evidence from the Lebouef case was, in turn, cross-admissible in the Dean case, consolidation of all three cases served the interest of judicial efficiency. (People v. Ochoa, supra, 19 Cal.4th at p. 409 [“Because consolidation ordinarily promotes efficiency, the law prefers it”].) Accordingly, we conclude that the trial court did not abuse its discretion when it granted the joinder motion. We also reject defendant’s further claim that, even if the trial court did not abuse its discretion in the first instance by granting joinder, its ruling actually resulted in gross unfairness amounting to a denial of due process. (People v. Stitely, supra, 35 Cal.4th at p. 531.) Defendant asserts that evidence of “planning, deliberative actions, and lack of regard for the well-being of others” introduced in connection with the Dean and Lebouef offenses influenced the jury’s consideration of the Tynan offense, which he argues had none of this type of direct evidence. His premise that such evidence was lacking with respect to the Tynan offense is erroneous. The circumstances of the Tynan offense show planning, purpose and a disregard for her well-being. Defendant, who had expressed a sexual interest in Tynan and was aware she was in possession of the handgun he had sold to William Jones, Jr., gained admittance to her apartment, raped and murdered her, and took the handgun to use in the attempt on Lebouef’s life. Therefore, we reject defendant’s claim that there was a spillover effect of evidence admitted in connection with the Dean and Lebouef cases into the Tynan case, much less that such evidentiary spillover resulted in a due process violation. Finally, as a corollary argument, defendant contends that the trial court erred by failing to sua sponte instruct the jury that it could not use evidence of one crime to convict him of other crimes. Defendant maintains that this instructional error violated his due process rights, right to unbiased jury and to a fair and reliable penalty determination. As defendant concedes, pursuant to CALJIC No. 17.02, the jury was instructed as follows: “Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all the crimes charged. Your finding as to each count must be stated in a separate verdict.” In People v. Catlin (2001) 26 Cal.4th 81 [109 Cal.Rptr.2d 31, 26 P.3d 357], we concluded that the trial court had correctly refused to give an instruction along the same lines as the instruction defendant argues should have been given here: “ ‘Evidence applicable to each offense charged must be considered as if it were the only accusation before the jury.’ ” (Id. at p. 153.) We explained that “[c]ontrary to the import of the proposed special instruction, under Evidence Code section 1101 the jury properly could consider other-crimes evidence in connection with each count, and also could consider evidence relevant to one of the charged counts as it considered the other charged count.” (Ibid.) We noted that in Catlin, as here, certain evidence would have been cross-admissible in separate trials of the offenses. Finally, we rejected the proposed instruction as cumulative of CALJIC No. 17.02. (26 Cal.4th at p. 153.) As the Attorney General points out, in this case, unlike Catlin, defendant failed even to propose a modification of CALJIC No. 17.02, or to propose an additional instruction, thus forfeiting the claim of instructional error. (People v. Kimble (1988) 44 Cal.3d 480, 503 [244 Cal.Rptr. 148, 749 P.2d 803] [where trial court “correctly instructed the jury regarding that law, it was defendant’s obligation to request any clarifying or amplifying instruction on that subject”].) Even if defendant had not forfeited the claim, we would reject it for the same reasons we rejected the comparable argument advanced in Catlin. Necessarily, then, we reject defendant’s collateral claim that the instructional error lowered the prosecution’s burden of proof. B. Guilt Phase Issues 1. Third Party Culpability Evidence Defendant contends that the trial court erred when it excluded evidence that a man named Kelvin Sloan, rather than defendant, may have murdered Erin Tynan. He asserts, further, that the error violated his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution. We find no error. a. Background At a hearing conducted pursuant to Evidence Code section 402, the defense presented the testimony of Kelvin Sloan, Ruby Green, and Nilia Harrison for purposes of establishing a third party culpability defense based on the theory that Sloan, rather than defendant, killed Erin Tynan. Sloan testified that in November 1990, he was a Marine stationed at Fort Irwin and also worked part time at a restaurant called Naugles. There, on November 5 or 6, he met Tynan. A day or two after he met her, he spent several hours at her apartment, but he did not engage in sexual relations with her. He testified he went to her house on one other occasion, staying for about an hour, but he could not remember the date. According to the evidence, Erin Tynan was murdered in Barstow on the night of November 14, 1990. Sloan testified that he was hospitalized at Camp Pendleton from November 9 to November 16, 1990, for a seizure disorder, after he collapsed at a ceremony marking the “Marine Corps birthday.” Camp Pendleton is 160 to 170 miles away from Barstow. For the first two days of Sloan’s hospitalization, he was strapped to a bed that had the guardrails up. The guardrails remained up until he was released from the hospital on November 16. He was not permitted to leave the hospital before that date. On November 16, Sloan was transported by ambulance from the hospital to Fort Irwin and from November 19 to November 23, he stayed with his sister at her home in Moreno Valley. Documents presented at the hearing supported Sloan’s testimony that he was not discharged from the hospital at Camp Pendleton until November 16, two days after Tynan’s murder. Defense counsel acknowledged that “The record does show a discharge date of the 16th .... That part is true.” Following Sloan’s testimony and the introduction of the hospital discharge papers, the trial court told defense counsel, that “I am proceeding on the assumption based on the witness’ testimony that it was impossible for him to leave the Camp Pendleton facility to be in Barstow on the date in question. You will have every opportunity to check with Marine personnel, Navy personnel, whatever, to rebut that assertion. But if you are unable to rebut it, I will have to accept as being true the fact that [Sloan] was confined in a locality which is a long ways from Barstow and that he therefore could not have been in the Barstow area at the time the crime was committed.” Defense counsel agreed that the distance between Camp Pendleton and Barstow “is at least 160, 170 miles.” Nevertheless, to “perfect the record,” the trial court allowed the defense to call Ruby Green and Nilia Harrison. Ruby Green testified that she and Sloan were living together in November 1990 and continued to live together until they separated in April 1991. Green testified that she saw Sloan at Naugles with Tynan on the night Tynan was murdered. She knew it was that night because she read about the murder in the newspaper “a couple of days later.” She testified further that Sloan did not come home that night and, when he did, he was wearing clothes other than the Naugles uniform in which she had seen him earlier. He told her he had gone to the barracks to pick up some clothes and had fallen asleep after he and someone named Boyd dropped Tynan off at her house. Green acknowledged that Sloan had spent three or four days in the hospital in November 1990. On cross-examination, she also acknowledged that she did not know the date of Tynan’s murder or the date when Sloan did not come home. Nilia Harrison testified that, toward the end of 1990, she was at the home of her cousin, Eva Lawrence, with Sloan. Sloan told her the police had picked him up in connection with Tynan’s murder. Sloan told her he and Tynan had been close friends “and they were trying to set him up for the murder.” She then testified that he told her “he didn’t mean to do it.” She said she told Sloan “that [Harrison’s] friend . . . was talking about his friend was getting set up for the murder and that this friend was Jonathan Knox.” Sloan asked her about a man named Ephraim Rollins “[bjecause he said he wanted to know that person that looked like him Ephraim, [and] he wanted to know Jonathan Knox.” Harrison then testified that Sloan said “that he didn’t mean to kill her.” On cross-examination and redirect examination she again testified that Sloan said someone had set him up for the murder and that the person who committed it “looked just like him.” She again testified that Sloan told her he “didn’t mean to kill her.” She acknowledged that she did not remember when the conversation had occurred. Following argument, the trial court ordered the defense not to mention Sloan or the other witnesses during opening argument, or in the questioning of any witness, or to call Green or Harrison “until we have had a further hearing outside the presence of the jury to establish the relevance of any of their testimony. But my preliminary ruling is that based on [the hospital discharge documents that] at least on their face . . . establish the fact that Mr. Sloan could not have been in Barstow on the date of the murder and therefore his testimony and the testimony of the other two witnesses would be irrelevant.” The defense did not renew its attempt to present this evidence. b. Analysis “The principles of law are clear. . . . [T]he standard for admitting evidence of third party culpability [is] the same as for other exculpatory evidence: the evidence [has] to be relevant under Evidence Code section 350, and its probative value [canjnot be ‘substantially outweighed by the risk of undue delay, prejudice, or confusion’ under Evidence Code section 352.” (People v. Kaurish (1990) 52 Cal.3d 648, 685 [276 Cal.Rptr. 788, 802 P.2d 278].) “At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . [Ejvidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833 [226 Cal.Rptr. 112, 718 P.2d 99]; see People v. Panah (2005) 35 Cal.4th 395, 481 [25 Cal.Rptr.3d 672, 107 P.3d 790].) Applying this standard, it is clear that Ruby Green’s testimony—that she saw Sloan with the victim the night of the murder, that he failed to return to their residence that night, and later told her that he and Boyd had dropped Tynan off at her apartment—was properly excluded. Such evidence does not rise even to the status of motive evidence. While it could be generously construed as possible evidence that Sloan had the opportunity to commit the crimes, as noted, evidence of mere opportunity without further evidence linking the third party to the actual perpetration of the offense is inadmissible as third party culpability evidence. Somewhat more problematic is the testimony of Nilia Harrison that Sloan made comments that could be construed as an admission that he killed Erin Tynan. The problem here is not, as defendant maintains, that the trial court improperly excluded the testimony because defendant failed to produce evidence controverting the documentary evidence that Sloan was in a hospital 160 or 170 miles away from Barstow the night Tynan was killed. The problem is that admission of the evidence would have necessitated a minitrial on the question of Sloan’s whereabouts on the night of the murder thus creating the possibility “of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) Although the trial court did not expressly base its ruling on Evidence Code section 352, we review the ruling, not the court’s reasoning and, if the ruling was correct on any ground, we affirm. “ 1 “No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 976 [17 Cal.Rptr.2d 122, 846 P.2d 704].) In light of the confused and contradictory tenor of Harrison’s testimony—asserting at one point that Sloan said someone was framing him for the murder, and at another, that he confessed to it—her testimony possessed, as the prosecutor noted, “minimal probative value.” Balanced against this minimal probative value was the “probability” that the admission of Harrison’s testimony would have “necessitate[d] undue consumption of time or . . . confus[ed] the issues, or misle[d] the jury.” (Evid. Code, § 352.) On this ground, therefore, the exclusion of her testimony was not error. Even if we assume that the trial court erred by not admitting the testimony of Green or Harrison, any error was harmless. Other than the minimally probative testimony of these witnesses, there was no evidence at all, direct or circumstantial, that connected Sloan to the actual perpetration of the rape and murder of Erin Tynan. By contrast, the evidence that defendant was the perpetrator was extremely strong. His sperm was found in the victim’s vagina, his hairs were found in her hands, he revealed details of the murder to Rhonda Contreras that had not yet been made public, he used a firearm in the attempted murder of Gail Lebouef that was similar to the firearm taken from Tynan’s apartment the night she was killed, and he told Winstein that he had killed Tynan. Therefore, “we conclude it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (People v. Hall, supra, 41 Cal.3d at p. 836, citing People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243].) 2. Exclusion of Jennifer Dean’s Statement Defendant contends that the trial court erroneously excluded as hearsay a videotaped statement by Jennifer Dean in which she claimed to have killed her husband. Defendant sought to introduce the videotape under the hearsay exception for statements against penal interest. (Evid. Code, § 1230.) He asserts that the error violated his Fifth, Sixth and Fourteenth Amendment rights to a fair trial. We conclude that the trial court properly excluded the statement as untrustworthy. (People v. Cudjo (1993) 6 Cal.4th 585, 607 [25 Cal.Rptr.2d 390, 863 P.2d 635] [trustworthiness is a threshold requirement for admission of a statement under Evid. Code, § 1230].) a. Background After her husband’s murder, Jennifer Dean was questioned by police and gave three statements, two of which were videotaped. In her first statement, which was videotaped, she said she came home from work, was unable to find her husband, and knew nothing of his death. In a second statement, which was not videotaped, she suggested that defendant and Jeffrey Hunter had killed her husband on their own initiative to obtain insurance money. In a third statement, which was videotaped, she told police that she alone had killed her husband because he had hurt their daughter, Sabrina. She claimed to have stabbed him to death with a kitchen knife while she was nude, following an argument with him. After killing her husband, she said she washed the knife, took a shower, dressed, and called her neighbors. Defendant called Dean to the stand, but she asserted her privilege against self-incrimination and was declared by the trial court to be unavailable. Defendant then sought to introduce the third statement as a statement against penal interest. (Evid. Code, § 1230.) Ultimately, the trial court declined to admit the third statement on the grounds that it failed to meet the exception’s threshold requirement of trustworthiness. The court observed that the first and third statements were “virtually mutually contradictory which indicated th